Madhya Pradesh High Court
Gurudayal Singh vs The State Of Madhya Pradesh on 9 January, 2017
MCRC-7448-2016
(GURUDAYAL SINGH Vs THE STATE OF MADHYA PRADESH)
09-01-2017
Shri Anuj Bhargava, learned counsel for the petitioner.
Shri Abhishek Soni, learned Deputy Government
Advocate for the respondent/State.
Shri Mohanlal Patidar, learned counsel for the Objector/Complainant.
Heard.
Being aggrieved by the order dated 28/09/2015 passed by II ASJ, Barwani in criminal revision No.17/2015, order dated 16/01/2015 passed by JMFC, Barwani in criminal case No.963/2010, the petitioner has preferred the present petition and prays for quashing the charge-sheet and entire criminal proceedings of criminal case No.963/2010 pending before the JMFC, Barwani pertaining to the petitioner.
2. Facts in brief are that one Anil Rathore lodged FIR on 19/07/2010 at Police Station-Barwani. Police registered the case at crime No.216/2010 for the offence punishable under Section 406 and 420 of IPC against the 7 persons viz. (I) Budh Singh Gandhi, (ii) Dilip Singh Sikarwar, (iii) Rameshwar Yadav, (iv) Abhijeet Upadhayay, (v) Purushottam, (vi) Aniket Gautam and (vii) Guru Singh Gandhi (the petitioner herein).
3. The allegations in the FIR were that the accused persons incorporated the Company in the name of M/s. New Madhuban Green Land Development Company Private Limited (for short the âCompanyâ). The Company promised that certain land/plot would be sold to the complainant @ Rs.30/- per sq. ft. and on that pretext, the accused persons procured money from him but despite obtaining substantial amount, the accused persons have not sold the plots to him and thus they have committed offence of cheating and criminal breach of trust.
4. The Police after completing the investigation submitted charge-sheet in the Court but dropped one of the Director viz. Ram Kumar Goyal from the array of accused persons on the ground that as on 20/07/1994, when the Company was incorporated, he was not the Director of the Company.
5. Learned JMFC, Barwani took cognizance of offence vide order dated 16/01/2015 passed in criminal case No.963/2010 and framed the charges under Section 406 and 420 of IPC against the accused â Abhijeet, Dilip, Purushottam, Aniket and Gurudayal (the petitioner herein). Subsequently, one of the accused viz. Abhijeet Upadhayay filed a petition under Section 482 of Cr.P.C. before this Court being M.Cr.C. No.10522/2015, which was allowed vide order dated 10/05/2016 and the proceedings against Abhijeet Upadhayay were quashed. Later, a similar petition being M.Cr.C. No.6261/2016 was filed by another accused person viz. Aniket Goutam, which was also allowed vide order dated 12/07/2016 and proceedings against Aniket were also quashed.
6. It is submitted by learned counsel for the petitioner that at the time of incorporation of the Company, the only Rameshwar Yadav, Purushottom Patel, Budh Singh Gandhi and Dilip Singh Sikarwar were the Directors. The petitioner was never the Director of the Company. The Company has not been made an accused in the present case. In the absence whereof the Director and much less the share-holders cannot be held vicariously liable for the offence alleged to have been committed by the Company. Co-accused persons Abhijeet and Aniket were exonerated by the Court, as they were not Director at the time of incorporation of the Company and similar is the case of present petitioner. The alleged offence is predominantly of civil nature, thus, the proceedings in question are abuse of criminal process. In the FIR there is no allegation that the petitioner dishonestly induced the complainant for purchasing the plot and also there is no allegation that the petitioner ever received money or had signed any receipt in this regard, therefore, framing of charge against the petitioner is illegal and incorrect and against the material available on record, therefore, the petitioner has prayed for quashing the same.
7. Prosecution as well as Objector/Complainant have opposed the prayer and it is submitted that there is no illegality or perversity in framing the charge against the petitioner, therefore, they prayed for dismissal of the petition.
8. Petitioner is son of one of the Director of the Company viz. Budhsingh Gandhi. Although the petitioner has refused that he has taken any money from any one but the objector has filed photocopies of few receipts issued by the petitioner under his signature. Existence of these receipts has not been denied during the arguments. Instead it is argued that if the petitioner has received some money on behalf of the Company and the same has been deposited with the Company, then, no criminal liability can be fastened upon him, but the money received by the petitioner has been deposited with the Company or not, is a matter of fact, which cannot be decided in this petition. Otherwise also there is no evidence to support the contention of the petitioner. In these circumstances it does not make any difference that petitioner was not the Director of the Company at the time of incident and so also non implementation of Company does not exonerate the petitioner from its liability.
9. Similarly, in view of the fact that petitioner has received the money as sale price of the plot and there is no evidence that the same has been deposited with the Company, it cannot be determined at this stage without seeking any evidence that the alleged offence is predominantly of civil nature. Similarly existence of malafide intention or intention to disuse, is a matter of fact, which again cannot be decided at this stage. Learned revisional Court has considered all these contentions of the petitioner in para 11 to 16 of the impugned order, which cannot be assailed on any of the ground raised by the petitioner.
10. The case of Ram Kumar Goyal was dropped by the police during investigation and the case of Abhijeet and Aniket against whom the proceedings were quashed by this Court vide orders dated 10/05/2016 and 12/07/2016 in M.Cr.C. Nos.10522/2015 and 6261/2016 respectively are totally different from the case of the present petitioner. In the peculiar facts in respect of the petitioner, the same benefit cannot be extended to him.
11. Though the petitioner has invited my attention towards para 11 of Sharad Kumar Sanghi vs. Sangita Rane (2015) 12 SCC 781 and para 12 and 13 of Vesa Holding Private Limited vs. State of Kerala (2015) 8 SCC 293 and also placed reliance in the matter of S.K. Alagh vs. State of Uttar Pradesh and others (2008) 5 SCC 662, Robert John D'Souza and others vs. Stephen V. Gomes and another (2015) 9 SCC 96, International Advanced Research Centre for Power Metallurgy and New Material (ARCI) and others vs. Nimra Cerglass Techincs Private Limited and another (2016) 1 SCC 348 but all these case are distinguishable on facts. In Sharad Kumar Sanghi's case (Supra) the allegations were found vague and principally levelled against the Company and there was no specific allegation against the Managing Director. The situation in the present case where certain allegations of receiving money with the promise to sale plot are there against the petitioner. In Vesa Holding Private Limited (Supra) it is held that breach of contract would amount to cheating in those cases where there was no deception played at very inception but considering that the money received by promising to sale the plot whether the intention of cheating was there or not, it cannot be determined without taking evidence.
12. S.K. Alagh's case (Supra) is related to vicarious liability holding that this is a matter of fact the Court has found that the vicarious liability cannot be cast on Managing Director for the offence allegedly committed by the Company. Similar is the situation with other case laws cited by learned counsel for the petitioner.
13. In the present case, petitioner has received the money with a promise to sale plot and as the alleged plot has not been sold to the complainant, therefore, the order passed by learned revisional Court cannot be said to be illegal or perverse. The petition is bereft of merits and is liable to be dismissed. Thus, without commenting on merit of the case, this petition is hereby dismissed.
(VIRENDER SINGH) JUDGE